United States v. Bradshaw , 161 F. App'x 399 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2006
Charles R. Fulbruge III
Clerk
No. 04-41035 c/w
No. 04-41110
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE DAHYL BRADSHAW,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-176-1 c/w
USDC No. 5:02-CR-1341-1
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Willie Dahyl Bradshaw appeals
the sentence imposed after his 2004 conviction for transporting
an undocumented alien and the order revoking the supervised
release imposed as part of his sentence for a 2002 conviction for
violating the same statute. We affirm.
Bradshaw argues for the first time on appeal that his
sentence in the 2004 matter was invalid in light of United States
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-41035 c/w
No. 04-41110
-2-
v. Booker.1 We review for plain error.2 To show plain error,
Bradshaw must show that his substantial rights were affected by
demonstrating that there is a reasonable probability that the
district court would have imposed a different sentence had it
sentenced under an advisory Guidelines regime.3 Bradshaw has not
made that showing here. The district court did not impose the
lowest sentence it could have within the Guidelines range, and
there is no evidence that the court thought the sentence imposed
was too severe.4
Alternatively, Bradshaw argues that the error affected his
substantial rights because it was structural or because prejudice
should otherwise be presumed. This argument is foreclosed by our
prior precedent.5 Accordingly, Bradshaw’s sentence is AFFIRMED.
Bradshaw also argues that the district court violated his
due process rights, codified in FED. R. CRIM. P. 31.1, when it
revoked his supervised release without, inter alia, proper
notice, a hearing, or written findings.6 We review the district
court’s decision to revoke supervised release for abuse of
1
125 S.Ct. 738 (2005).
2
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th
Cir. 2005); United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
3
Mares, 402 F.3d at 521.
4
See id.; United States v. Bringier, 405 F.3d 310, 317-18 (5th Cir.
2005).
5
See United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005).
6
See Morrissey v. Brewer, 408 U.S. 471, 488 (1972).
No. 04-41035 c/w
No. 04-41110
-3-
discretion.7 Although the district court may have erred in not
following the requirements of FED. R. CRIM. P. 31.1, any such
error was harmless.8 Bradshaw stipulated to and plead guilty to
the offense underlying the 2004 conviction. The offense was
punishable by up to 10 years of imprisonment.9 Therefore, the
court had no choice but to revoke his supervised release.10 The
court’s order revoking supervised release is AFFIRMED.
We AFFIRM the sentence in No. 04-41035 and AFFIRM the order
revoking supervised release in No. 04-41110.
7
United States v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995).
8
See United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995).
9
8 U.S.C. § 1324(a)(1)(B)(i).
10
U.S.S.G. §§ 7B1.1(a)(2), 7B1.3(a)(1); see United States v. Kindred,
918 F.2d 485, 488 (5th Cir. 1990) (affirming revocation of supervised release
where the evidence at the revocation hearing overwhelmingly established a
violation of the defendant’s supervised release and revocation was mandatory);
United States v. Hinson, 429 F.3d 114, 116-17 (5th Cir. 2005) (holding that
Booker did not alter prior law requiring a judge to find by a preponderance of
the evidence that the defendant violated a condition of release).